[Cite as State v. Casey, 2023-Ohio-3837.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- vs -

DARYL L. CASEY, JR.,

Defendant-Appellant.

CASE NO. 2023-T-0035

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2020 CR 00515

O P I N I O N

Decided: October 23, 2023

Judgment: Affirmed

Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant 

Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 

44481 (For Plaintiff-Appellee).

Rhys B. Cartwright-Jones, 42 North Phelps Street, Youngstown, OH 44503 (For 

Defendant-Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Daryl L. Casey Jr., appeals the judgment of the Trumbull County 

Court of Common Pleas, denying his petition for postconviction relief without a hearing. 

We affirm.

{¶2} At approximately 1:00 a.m. on July 6, 2020, appellant shot Kavin Moore, a 

resident of the same apartment building in which appellant resides. Multiple shots hit 

Moore in the leg, while other shots entered their shared building. Following the shooting, 

appellant was indicted on one count of discharging a firearm at or into an occupied 
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structure, in violation of R.C. 2923.161(A)(1) and (C), and one count of felonious assault, 

in violation of R.C. 2903.11(A)(1) and (D)(1)(a). Both counts were attended by firearm 

specifications pursuant to R.C. 2941.145. 

{¶3} After a jury trial, during which appellant maintained that he acted in selfdefense, the jury found him guilty of improperly discharging a firearm into a habitation and 

the attendant firearm specification. The jury was unable to reach a unanimous decision 

on the felonious assault charge, resulting in the trial court declaring a mistrial on that 

count. The court ordered a presentence investigation and report and set the matter for 

sentencing.

{¶4} Appellant was subsequently sentenced to an indefinite prison term of four 

to six years for improperly discharging a firearm into a habitation and a mandatory prison 

term of three years on the specification, to be served prior and consecutive to the 

indefinite sentence, for an aggregate prison sentence of seven to nine years. The court 

dismissed the felonious assault charge on the state’s motion, wherein it indicated that 

further prosecution of that count would not be in the interest or furtherance of justice.

{¶5} Appellant appealed his conviction. On appeal appellant argued, inter alia, 

the trial court erred in failing to read an accurate jury instruction on self-defense and that 

his counsel was ineffective for failing to provide mitigating evidence of post-traumatic 

stress disorder (“PTSD”). With respect to the first point, this court determined that the 

trial court was not required to provide the jury with an instruction relating to the “castle 

doctrine” under the former version of R.C. 2901.09(B). This court concluded that there 

was evidence that appellant was in the apartment building’s parking lot at the time of the 
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shooting and “the definition of a dwelling does not extend to parking lots and driveways.” 

State v. Casey, 11th Dist. Trumbull No. 2021-T-0029, 2022-Ohio-2199, ¶ 24 (“Casey I”).

{¶6} Regarding counsel’s alleged ineffectiveness, this court determined that 

evidence of appellant’s alleged PTSD diagnosis was not part of the record. As such, this 

court determined “we cannot say that [appellant] was prejudiced by the failure to offer 

further evidence of his PTSD or the effect of that diagnosis on his mental state.” Id. at ¶ 

33. This court ultimately affirmed appellant’s conviction.

{¶7} On November 7, 2022, appellant filed the underlying petition for 

postconviction relief. Appellant claimed trial counsel was ineffective for (1) failure to 

assert mitigation evidence regarding PTSD; (2) failure to assert a potential defense of 

“habitation”; and (3) failure to draw the trial court’s attention to this court’s opinion in State 

v. Wagner, 11th Dist. Lake No. 2021-L-101, 2022-Ohio-4051, which, following State v. 

Brooks, 170 Ohio St.3d 1, 2022-Ohio-2478, 208 N.E.3d 751, stated: “amended R.C.

2901.05 applies ‘to all trials conducted on or after its effective date’ regardless of when 

the underlying criminal conduct occurred.” Wagner at ¶ 23, quoting Brooks at ¶ 2. 

{¶8} The state duly responded to the petition and moved to dismiss the same. 

Appellant opposed the motion. The trial court eventually dismissed the petition without a 

hearing. The trial court determined appellant’s allegations of ineffective assistance of 

counsel to be meritless and unsubstantiated. The court observed that, other than 

appellant’s own affidavit, appellant failed to offer any evidentiary quality materials to 

support his allegations. The trial court noted that while appellant had attached a 

statement from his apartment complex property manager, the statement solely pertained 

to his allegation relating to his defense-of-habitation argument and was not offered as a 
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sworn affidavit. The court therefore concluded the statement failed to rise to the minimum 

levels of cogency to support the assertions in the petition. The court also found 

appellant’s arguments could and should have been raised in his direct appeal and were 

thus res judicata. 

{¶9} Appellant now appeals the trial court’s dismissal assigning the following as 

error:

{¶10} “The trial court erred in denying Casey’s postconviction petition without a 

[hearing].”

{¶11} In State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, 

the Supreme Court of Ohio held that “a trial court’s decision granting or denying a 

postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse 

of discretion[.]” Gondor at ¶ 58; see also State v. Martin, 11th Dist. Trumbull No. 2017-T0014, 2018-Ohio-3244, ¶ 20 (affirming the dismissal of a petition without a hearing).

{¶12} In Gondor, the Supreme Court made clear that in matters relating to 

postconviction relief, the trial court’s decision should be given deference:

In postconviction cases, a trial court has a gatekeeping role 

as to whether a defendant will even receive a hearing. In State

v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905, 

paragraph two of the syllabus, this court held that a trial court 

could dismiss a petition for postconviction relief without a 

hearing “where the petition, the supporting affidavits, the 

documentary evidence, the files, and the records do not 

demonstrate that petitioner set forth sufficient operative facts 

to establish substantive grounds for relief.” This court 

reversed the judgment of the appellate court 

in Calhoun, holding that “the trial court did not abuse its

discretion in dismissing the credibility of [the] affidavits,” which 

served as the basis for his petition. * * * Id. at 286, 714 N.E.2d

905.

(Emphasis omitted.) Gondor at ¶ 51.
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{¶13} R.C. 2953.21, Ohio’s postconviction relief statute, states, in pertinent part:

(A)(1)(a) A person in any of the following categories may file 

a petition in the court that imposed sentence, stating the 

grounds for relief relied upon, and asking the court to vacate 

or set aside the judgment or sentence or to grant other 

appropriate relief:

(i) Any person who has been convicted of a criminal offense 

or adjudicated a delinquent child and who claims that there 

was such a denial or infringement of the person’s rights as to 

render the judgment void or voidable under the Ohio 

Constitution or the Constitution of the United States;

* * *

(D) * * * Before granting a hearing on a petition filed under 

division (A)(1)(a)(i), (ii), (iii), or (iv) of this section, the court 

shall determine whether there are substantive grounds for 

relief. In making such a determination, the court shall 

consider, in addition to the petition, the supporting affidavits, 

and the documentary evidence, all the files and records 

pertaining to the proceedings against the petitioner[.]

* * *

(F) Unless the petition and the files and records of the case 

show the petitioner is not entitled to relief, the court shall 

proceed to a prompt hearing on the issues * * * [.]

{¶14} “In a petition for post-conviction relief, which asserts ineffective assistance 

of counsel, the petitioner bears the initial burden to submit evidentiary documents 

containing sufficient operative facts to demonstrate the lack of competent counsel and 

that the defense was prejudiced by counsel’s ineffectiveness.” State v. Jackson, 64 Ohio

St.2d 107, 413 N.E.2d 819 (1980), at syllabus. “In order to prevail on an ineffective 

assistance of counsel claim, an appellant must demonstrate that trial counsel’s 

performance fell ‘below an objective standard of reasonable representation and, in 

addition, prejudice arises from counsel’s performance.’” State v. Andrus, 11th Dist.
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Ashtabula No. 2019-A-0082, 2020-Ohio-6810, ¶ 60, quoting State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.

{¶15} “To be genuinely relevant, the evidence dehors the record must materially 

advance the petitioner’s claim and ‘meet some threshold standard of cogency.’” State v. 

Delmonico, 11th Dist. Ashtabula No. 2004-A-0033, 2015-Ohio-2882, at ¶ 14, 

quoting State v. Schlee, 11th Dist. Lake No. 97-L-121, 1998 WL 964291, *2 (Dec. 31,

1998). In the absence of such a standard, it would be too easy for the petitioner to simply 

attach as exhibits “‘evidence which is only marginally significant and does not advance 

the petitioner’s claim beyond mere hypothesis and a desire for further discovery.’” State

v. Sopjack, 11th Dist. Geauga No. 96-G-2004, 1997 WL 585904, *3 (Aug. 22, 1997), 

quoting State v. Coleman, 1st Dist. Hamilton No. C-900811, 1993 WL 74756, *7 (Mar. 17,

1993).

{¶16} The standard of review for ineffective assistance of counsel was stated by 

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to support a claim of ineffective assistance 

of counsel, the defendant must satisfy a two-prong test. First, he must show that counsel’s 

performance was deficient. Strickland at 687. This requires a showing that counsel made 

errors so serious that counsel was not functioning as the counsel guaranteed the 

defendant by the Sixth Amendment. Id. A properly licensed attorney is presumed to be 

competent. Id. at 689. In order to rebut this presumption, the defendant must show the 

actions of counsel did not fall within a range of reasonable assistance. Id. The Court 

in Strickland stated, “[t]here are countless ways to provide effective assistance in any 

given case. * * *.” Id. Therefore, “[j]udicial scrutiny of counsel’s performance must be 
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highly deferential.” Id. “A fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the conduct from 

counsel’s perspective at the time.” Id. In addition, “[b]ecause of the difficulties inherent in 

making the evaluation, a court must indulge a strong presumption that counsel's conduct 

falls within the wide range of reasonable professional assistance * * *.” Id.

{¶17} Second, the defendant must show the deficient performance prejudiced the 

defense. In order to satisfy this prong, “[t]he defendant must show that there is a 

reasonable probability that, but for counsel’s * * * errors, the result of the [trial] would have 

been different.” Id. at 694; accord State v. Bradley, 42 Ohio St.3d 136, at paragraph three 

of the syllabus.

{¶18} It is well-settled that strategic and tactical decisions do not constitute a 

deprivation of the effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49,

402 N.E.2d 1189 (1980).

{¶19} Appellant first argues trial counsel was ineffective for failing to offer 

evidence of a purported diagnosis of PTSD in mitigation. The only support appellant 

provides for any such diagnosis, however, is by way of his personal affidavit, where he 

averred: “[t]rial counsel did state that he had [a] PTSD expert that would provide vital 

expert testimony regarding my mental state and how the effects of PTSD could have had 

an impact on the knowing aspect of the offense; but said expert was never introduced at 

trial, nor did I ever meet with any such expert to review any type of report from this 

promised expert[.]” 
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{¶20} Initially, in Casey I, appellant attempted to argue the foregoing, but this court 

properly acknowledged that any attempt to establish ineffective assistance would require 

recourse to evidence dehors the record. In this respect, the argument is properly before 

this court in the instant appeal and not barred by res judicata. 

{¶21} Despite this point, however, appellant’s petition does not include any 

evidence, let alone medical or psychological proof dehors the record of an independent 

PTSD diagnosis. PTSD is a clinical diagnosis. See State v. Nemeth, 82 Ohio St.3d 202, 

212-213, 694 N.E.2d 1332 (1998). Without such evidence, appellant’s PTSD claim is 

untested and has the status of a mere hypothesis. Counsel’s performance cannot be 

deemed deficient for failing to advance a claim in mitigation that appellant, on 

postconviction, has failed to establish by reference to evidence dehors the record. The 

claim, therefore, does not meet the necessary threshold standard of cogency.

{¶22} Moreover, appellant submitted no evidence of the psychological or

behavioral trends that may or may not manifest with such a diagnosis. It is accordingly 

unclear whether introducing such evidence would have a truly positive effect on 

appellant’s potential defense. For example, if there is expert disagreement regarding

whether one diagnosed with PTSD will, under circumstances of excitement or duress, act 

out (fight), posture (fawn), run away (fly) or collapse in fear (freeze), there would be no 

reason to impugn counsel’s performance. Without some evidence that appellant was (1) 

diagnosed clinically with PTSD and (2) the diagnosis would bear or militate in his favor, 

we cannot conclude counsel was deficient in his performance to appellant’s prejudice for 

failing to fully pursue this arguable mitigation strategy. In short, counsel could have made 

the tactical decision to avoid this strategy.
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{¶23} Next, appellant contends there is a meaningful factual issue as to whether 

he was in his residence at the time of the incident giving rise to the charges. Appellant 

does not provide extensive argumentation on this point, but appears to challenge trial 

counsel’s failure to investigate whether the aspect of the building into which he fired shots 

was a de facto habitation. 

{¶24} Appellant was convicted of one count of discharging a firearm at or into 

habitation. R.C. 2923.161(A)(1) provides: “No person, without privilege to do so, shall 

knowingly * * * [d]ischarge a firearm at or into an occupied structure that is a permanent 

or temporary habitation of any individual.”

{¶25} Appellant attached a notarized letter to his petition written and signed by the 

property manager of what he describes as “the apartment in question.” The property 

manager states that the apartment was not occupied by a tenant on July 6, 2020, the date 

of the incident. The letter, however, is not in the form of an affidavit. As the letter is not 

a sworn, formal document, it cannot be considered an affidavit in support. 

{¶26} Moreover, the letter designates the apartment “at 3053 Hadley Ave., Apt. 

#1, Youngstown, OH 44505.” (Emphasis added.) The record indicates that residence in 

question is located in Liberty Township, Trumbull County, Ohio. Although this may be 

considered an oversight, it is still problematic and affects the credibility of the letter.

{¶27} Further, we cannot simply assume that trial counsel did not investigate this 

element of the crime charged. And, assuming the alleged apartment into which appellant 

fired his weapon was not factually occupied at the time of the offense does not imply, as 

a matter of law, it might not be likely occupied. An “occupied structure” is defined, in 

part, a structure that “is maintained as a permanent or temporary dwelling, even though 
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it is temporarily unoccupied and whether or not any person is actually present,” or 

“occupied as the permanent or temporary habitation of any person, whether or not any 

person is actually present.” R.C. 2909.01(C).

1 As such, “a violation of R.C.

2923.161(A)(1) occurs when an offender fires a gun into someone’s habitation, 

regardless of the presence of people.” State v. Lambert, 2d Dist. Montgomery No. 28655,

2021-Ohio-17, ¶ 59. In this respect, the structure is an apartment that, even if it was used 

for storage, might still have an occupant placing items in the area or an occupant 

recovering items from the area. Given these points, we cannot conclude that counsel’s 

performance was deficient for failing to raise the proposed defense.

{¶28} Regardless, the trial court determined the letter did not meet the minimal 

standard of cogency required to support a petition for postconviction relief. Under these 

circumstances, we find no error in the trial court’s decision.

{¶29} Finally, appellant contends trial counsel was ineffective for failing to address 

the impact of this court’s decision in Wagner, 2022-Ohio-4051. We first point out that 

appellant, through appellate counsel, attempted to raise this argument on a delayed 

application to reopen the case. This court determined that the application’s untimeliness 

was sufficient to deny the same (specifically, that counsel’s claim of his own 

ineffectiveness was insufficient to establish good cause for a delayed application). 

Because, however, the merits of the claim were not reached, and due to the timing of this 

court’s release of Wagner, counsel was unable to raise the claim on direct appeal, the 

argument is not barred by res judicata.

1. We recognize that this definition of occupied structure applies to violations of R.C. 2909.01 through 

2909.07. Courts, however, have utilized the definition in the context of a discharging a firearm at or into 

habitation offense. See, e.g., State v. Leigh, 2023-Ohio-91, 206 N.E.3d 37, ¶ 20 (2d Dist.).
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{¶30} In Wagner, this court, following the Supreme Court of Ohio’s ruling in 

Brooks, 2022-Ohio-2478, observed:

The Supreme Court held that amended R.C. 2901.05 applies 

“to all trials conducted on or after its effective date” regardless 

of when the underlying criminal conduct occurred. [Brooks] at

¶ 2. In its analysis, the court found this was not an ex post 

facto law since it did not create a new crime or increase the 

burden or punishment for a past crime. Id. at ¶ 13.

The court also held that, as amended, the statute did not apply 

retroactively but prospectively to all trials occurring after its 

effective date, emphasizing the right to self-defense was 

stated in the present tense (“[a] person is allowed to act in 

self-defense” and “at the trial of a person * * * the prosecution 

must prove” self-defense). Id. at ¶ 14. It concluded that since 

“[t]he amendment here applies prospectively and, because it 

does not increase the burden on a criminal defendant, there 

is no danger of its violating Ohio’s Retroactivity Clause or the 

United States Constitution’s Ex Post Facto Clause.” 

(Emphasis sic.) Id. at ¶ 19.

Wagner at ¶ 23-24.

{¶31} While amended R.C. 2901.05 and R.C. 2901.09, Ohio’s self-defense and 

defense of residence statutes, were effective approximately one month prior to appellant’s 

conviction (May 21, 2021), Wagner was not decided until November 14, 2022. Moreover, 

Brooks, the Supreme Court of Ohio’s decision upon which Wagner relied, was decided 

on July 21, 2022. Both cases were decided well after appellant’s conviction and this 

court’s opinion and judgment affirming the same (June 27, 2022). We decline to find trial 

counsel’s performance deficient for failing to raise a matter of law which had not been 

settled in this district, let alone the Supreme Court at the time of trial.

{¶32} Appellant’s assignment of error lacks merit.
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{¶33} For the reasons discussed in this opinion, the judgment of the Trumbull 

County Court of Common Pleas is affirmed.

MATT LYNCH, J.,

ROBERT J. PATTON, J.,

concur.